Citation Nr: 9909514
Decision Date: 04/06/99 Archive Date: 04/16/99
DOCKET NO. 94-36 021A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an evaluation in excess of 40 percent for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Howard M. Scott, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied the veteran's claim on appeal.
The veteran, who had active service from December 1941 to
December 1945, appealed that decision and the case was
referred to the Board for appellate review.
FINDING OF FACT
The veteran has level IV hearing in the right ear and level
VI hearing in the left ear; no improvement in his hearing has
been demonstrated.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 40
percent for bilateral hearing loss have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85,
4.87 Diagnostic Code 6102 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran essentially contends that the current 40 percent
evaluation for bilateral hearing loss does not accurately
reflect the severity of his disability. He maintains that
independent evaluation calculates hearing loss to be 64
percent, that he has lost a considerable amount of income and
pension benefits due to an early retirement due to his
hearing loss, and that his hearing aids do not completely
correct the problem.
Service connection for defective hearing was granted by the
RO in February 1946, and a noncompensable evaluation was
assigned, effective December 1945. In a rating decision
dated in July 1986, the RO increased the evaluation for
bilateral defective hearing to 40 percent, effective April
1986. This decision was based on a May 1986 VA audiology
examination that showed speech reception of 38 decibels for
both ears, and discrimination ability of 56 percent for the
right ear and 68 percent for the left ear. Literal
designation was noted to be E for the right ear and D for the
left ear.
The Board notes that, by regulatory amendment effective
December 1987, substantive changes were made to the schedular
criteria for evaluating impairment of auditory acuity.
On VA audiometric evaluation in September 1993, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
55
50
65
65
75
LEFT
60
65
70
75
80
The average decibel threshold at 1000, 2000, 3000 and 4000
Hertz for the right ear was 65, and for the left ear was 73.
Speech discrimination was 72 percent in the right ear and 68
percent in the left ear.
On VA audiometric evaluation in April 1998, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
60
65
70
70
85
LEFT
60
70
75
70
85
The average decibel threshold at 1000, 2000, 3000 and 4000
Hertz for the right ear was 73, and for the left ear was 75.
Speech discrimination was 76 percent in the right ear and 72
percent in the left ear. The diagnosis was sensory hearing
loss, bilaterally.
The VA determines disability evaluations through a schedule
of ratings which is based on the average impairment of
earning capacity resulting from specific service-connected
disabilities. See 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. 4.1
(1998). Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994).
Disability ratings for service-connected hearing loss are
derived by a mechanical application of the rating schedule to
the numeric designations after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). In
this case, the results of the April 1998 audiometric
examination translate to level IV hearing in the right ear
and level VI hearing in the left ear, which warrant a 20
percent evaluation under the rating criteria now in effect.
See 38 C.F.R. §§ 4.85, 4.87. 38 C.F.R. § 3.951(1998),
however, provides that a readjustment to the Rating Schedule
shall not be grounds for reduction of a disability rating
unless medical evidence establishes that the disability has
actually improved. In this case, the RO has found, and the
Board agrees, that there has been no actual improvement in
the service-connected bilateral hearing loss. Accordingly, no
change in the 40 percent evaluation in effect since 1986 is
warranted.
As discussed above, the results of the April 1998 examination
do not provide a basis for an evaluation in excess of 40
percent. The Board notes that the veteran has submitted
correspondence from a private physician, dated in January
1994, who states that "based upon a formula derived and
advocated by the American Council of Otolaryngology, Head and
Neck Surgery . . . [the veteran's] combined (binaural)
deficit calculates to 64%." The Board observes, however,
that, while the veteran's hearing loss may well calculate to
a 64 percent deficit under the criteria derived by the
American Council of Otolaryngology, Head and Neck Surgery,
such criteria do not apply to claims for VA benefits.
Because of the requirement to mechanically apply the tables
of the rating schedule to the results of audiometric testing,
see Lendenmann, supra, in evaluating service-connected
hearing impairment, comments or opinions from medical
professionals, as well as the results of private audiometric
examinations, have limited probative value in hearing loss
cases, unless they are in the format that permits the numeric
designations from an audiometric examination to be plugged
into Table VII of the rating schedule under 38 C.F.R. § 4.87
(1986), or Tables VI and VII under 38 C.F.R. § 4.87 (1998).
Further, evaluations for hearing loss make proper allowance
for improvement by hearing aids. 38 C.F.R. § 4.86 (1998).
Accordingly, the Board finds that the preponderance of the
evidence is against an evaluation in excess of 40 percent for
bilateral hearing loss. In reaching this decision, the Board
has considered the history of the veteran's hearing loss, as
well as the current clinical manifestations and the effect
this single disability may have on the earning capacity of
the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1998). The
veteran's hearing loss is simply not impaired to a degree to
warrant a higher schedular evaluation.
ORDER
Entitlement to an evaluation in excess of 40 percent for
bilateral hearing loss is denied.
REMAND
The Board notes that the veteran has argued that his hearing
loss has affected his employment and pension, resulting in a
loss in earning capacity totaling approximately $700 a month.
Notably, however, the RO has heretofore not specifically
addressed this matter. As this contention raises the
question of entitlement to an extraschedular rating, the
Board is constrained to conclude that further development is
warranted.
Accordingly, in order to give the veteran every consideration
with respect to the present appeal, and to ensure full
compliance with due process requirements, it is the Board's
opinion that further development of the case is required.
Accordingly this case is REMANDED for the following action:
Following the procedure set forth at
38 C.F.R. § 3.321(b)(1), the RO should
specifically document their
consideration as to whether the
veteran's claim for an evaluation in
excess of 40 percent for bilateral
hearing loss warrants referral to the
Director, Compensation and Pension
Service for consideration of the
assignment of an extra-schedular
evaluation.
If the benefits sought on appeal are not granted, the veteran
and his representative should be furnished a supplemental
statement of the case and be afforded the applicable
opportunity to respond before the record is returned to the
Board for further review. The purpose of this REMAND is to
obtain additional development, and the Board does not
intimate any opinion as to the merits of the case, either
favorable or unfavorable, at this time. The veteran is free
to submit any additional evidence he desires to have
considered in connection with his current appeal. No action
is required of the veteran until he is notified.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
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